Lord Judd: I of course find the noble Earl's remarks helpful. Perhaps I may make the observation that I believe some people out there in civvy street do not always understand the intricacies of the thinking in government circles in the Ministry of Defence, or indeed, as I said earlier, in the military culture. It is unfortunate that there should be in the Bill an implication that something may on occasion be done by the Defence Council, or by somebody authorised by the Defence Council, because inevitably from time to time people are going to ask why it was not actually done by the Defence Council and what is the difference and the significance of it. I am sure it is not intended that there should be a difference and a significance but the situation I have described could arise. I am the last person to want change for change's sake. That is not a role which attracts me. But when one is considering

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legislation to clarify situations it is just as well to make sure that any possible doubts have been looked at and dealt with.

I listened to what the noble Earl said. I liked what I heard. I shall go away and consider his remarks but at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 3 agreed to.

Clauses 4 and 5 agreed to.

Lord Mayhew moved Amendment No. 4:

After Clause 5, insert the following new clause--(" .--(1) In each of the 1955 Acts--
(a) in subsection (3) of section 24 (misconduct in action), subsection (2) of section 25 (assisting the enemy), and subsection (3) of section 26 (obstructing operations etc), paragraph (a) and the words "(b) in any other case," shall be omitted;
(b) in subsection (1) of section 31 (mutiny) the word "death" shall be omitted and the word "imprisonment" inserted; and
(c) in section 32 (failure to suppress mutiny) sub-paragraph (i) and the words "(ii) in any other case," shall be omitted.
(2) In the 1957 Act--
(a) in subsection (3) of section 2 (misconduct in action), subsection (2) of section 3 (assisting the enemy), and subsection (3) of section 4 (obstructing operations etc), paragraph (a) and the words "(b) in any other case," shall be omitted;
(b) in subsection (1) of section 9 (offences of mutiny) the word "death" shall be omitted and the word "imprisonment" inserted; and
(c) in section 10 (failure to suppress mutiny), the word "death" shall be omitted and the word "imprisonment" inserted in its place, and the words "and in any other case, to imprisonment or any less punishment so authorised" shall be omitted.").

The noble Lord said: This subject of the death penalty in the defence forces has been discussed many times in both Houses of Parliament over many years. I do not propose to go through the familiar arguments yet again. However, as the years go by the case for retention becomes weaker and weaker. It is now 50 years since the penalty was imposed. There have been wars in the Falklands, the Gulf and Korea without, so far as I know, it being relevant at all.

The time is rapidly coming for the Government at long last to accept what I believe to be logical and inevitable. The death penalty has been abolished by most of our NATO allies; some took the step many years ago. The likelihood of the offences concerned--of mutiny, of deliberate assistance to the enemy--being committed has diminished and continues to do so. The likelihood of an execution being decided on and carried out has accordingly become less. Its value as a deterrent, if it ever was a deterrent--we have had that argument many times-- becomes less and less substantial. It is a relic. It is irrelevant to our new professional army and to the age in which we live. The time has come to wind it up.

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To most people the words "armed forces" and "death penalty" immediately bring to mind the terrible abuse, in many cases, of the death sentence in the First World War. That is what people think of, and it does not do the Armed Forces much good. I have just finished reading a remarkable new book about the First World War called "The Bickersteth Diaries". It consists of the letters home of two courageous and civilised officers, one of them a chaplain, who experienced four years of trench warfare. What this gallant chaplain found most stressful, amid all the tasks of comforting the wounded and the dying and picking up the remains of bodies for burial, was sharing the last night with shell-shocked young soldiers before they faced a firing squad.

Those times are long past and, of course, the death penalty is a much stricter affair today. It is more narrowly defined but it is still there, for some reason, unused for 50 years. It does not do the image of the Armed Forces any good. It does not feature in the Government's recruiting propaganda. I would be very surprised if it did.

The time is rapidly coming when we should get ourselves up to date and abolish the death penalty for the services.

4.30 p.m.

The Earl of Balfour: I am concerned that in the Navy, and even in the Merchant Navy to some extent, there could be a risk of mutiny. That is the only thing I want to talk about. Mutiny is a very serious offence. It has not taken place, I am glad to say, for a very long time. The noble Lord, Lord Mayhew, gave the example of the First World War. I feel that there a few of the officers should perhaps have been put up against a wall and shot. I feel that in the case of mutiny the death penalty is the ultimate sentence which I feel should still remain on the statute book.

Let us suppose that a mutiny takes place after the death sentence has been abolished and that the forces come in and re-take that ship. If they knew, with the sort of murder that has very often taken place with a mutiny, that these people, the mutineers, were going to get away with a life sentence of prison, I have a feeling that the officers re-capturing that ship would make certain that none of them lived to tell the tale. I would not like to see that, for this reason: for whatever crime anyone has ever committed, at least I want to make certain that that person stands a fair trial. I feel that if we do away with the death sentence totally, that might not be the case.

Lord Williams of Mostyn: I support this amendment just on the basis of principle. I would suggest that in any legal, judicial system--and of course I fully appreciate that we are speaking within a particular context--it is unwise to have a penalty which has fallen, as the noble Lord, Lord Mayhew, said, into complete disuse after 50 years. There is no death penalty for murder in this country.

A person who many of us would believe did infinitely greater harm to the security interests of this country and therefore to jeopardise the interests of those serving

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Her Majesty in one form or another was George Blake. There was no death penalty for him: the sentence was 42 years. One is also contemplating the imposition of a death sentence without the normal safeguard of a trial by jury. On those bases, not least the fundamental underpinning of which the noble Lord, Lord Mayhew, spoke, that a penalty not used becomes a penalty without value, I beg leave to support his amendment.

Lord Redesdale: I too support this amendment. I do believe that the death penalty is a relic, even for mutiny. The noble Lord, Lord Constantine of Stanmore, raised the issue of mutiny on ships, which would lead to the need for keeping the death penalty. I do not have a history book with me, however, but it is some time in the distant past since a mutiny on ship has taken place. The conditions that bring about a mutiny should be looked at. In today's very well trained and very well motivated armed forces, a mutiny will not take place for no reason whatever. Mutiny usually takes place on ships due to the very harsh conditions that are suffered, or because the soldiers themselves feel there is a form of injustice. Therefore, if that injustice has taken place, there might be mitigating circumstances.

We live in a society where the death penalty is not seen to be in any way, shape or form acceptable. Even for the most heinous of crimes the death penalty has not been implemented in the recent past. I believe that that should remain so. I do not believe that, under any circumstances in the society in which we live, we should have the death penalty. As the Army, in its conditions of service, reflects the society it serves, perhaps the death penalty should be removed. I support the amendment.

Earl Howe: With his proposed new clause, the noble Lord, Lord Mayhew, has raised a subject which engages the consciences of all of us. It is certainly not a matter which many of us can readily consider dispassionately, yet I suggest that we need to attempt to do so, even though we are contemplating the possible imposition of the most dreadful of punishments in what may well be the most dreadful of circumstances when the safety of our Armed Forces or even of the nation itself may be in peril.

As the new clause indicates, the death penalty is retained under the service discipline Acts as a non-mandatory sentence for five offences where these have been committed with an intent to assist the enemy, or the taking or not taking of action in connection with operations against an enemy. The offences involved would be likely not only to jeopardise national security, but also to put the lives of other servicemen and women at direct risk. The nearest civil criminal offence of this nature would be an act of treason for which, of course, the death penalty is still mandatory.

When men and women join the Armed Forces of this country, they subject themselves to a body of law which is designed to provide for the effectiveness of the service as a fighting force through its disciplinary system. That, of course, is what the Bill is all about. Indeed, much of the Bill is specifically concerned with bringing service law and procedures into line with civilian ones in accordance with our standing policy to do that where it is sensible and practical to do so.

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However, there are many instances where it is not possible or sensible for service law to be identical to civil law. The offences we are talking about here are a case in point: they are solely and specifically service offences. Service law has to be framed to respond to the circumstances of service life worldwide, in peace and war, and including in armed operations against an enemy. In any case, the death penalty has been retained in the civil criminal law, notably for treason, as I have just mentioned, but also for piracy with violence.

The services are firmly of the view that the death penalty should be retained for the five service offences for which it remains a sentencing option. I must stress to noble Lords the important point about all five offences: there must be an enemy. My noble friend Lord Balfour referred to the fact that mutiny at sea is one of the offences which can carry the death penalty. He is perfectly right in that, but unless there is an enemy, the death penalty cannot be passed under the service discipline Acts.

Accordingly, Ministers have given undertakings that the penalty, if passed by a court martial, would not be carried out for offences committed in peacetime. That was reiterated by my right honourable friend, the then Minister of State for the Armed Forces, Sir Archibald Hamilton, when the matter was debated during the passage of the previous Armed Forces Bill. In peacetime, we would use the system of post-trial review to ensure that any sentence of death passed by a court martial was commuted on review.

I know that we all have our views, often strongly held, about the appropriateness or otherwise of the death penalty as a sentence available to the civil courts for offences such as murder. When the retention of the death penalty was debated during the passage of the previous Armed Forces Bill, one noble Lord acknowledged that he found it an issue which was very difficult to decide, and he went on to say:

"There are reasonable arguments in favour of retaining the death penalty in military law. Noble Lords who have seen active service will know that you have problems in war to which there is no equivalent in civilian life. Extraordinary problems of discipline arise which, it can be argued, call for the threat of extraordinary punishment".

I draw those remarks to the Committee's attention not for the purpose of irritating the noble Lord, Lord Mayhew, by quoting what he said out of context, because he went on to speak in favour of the abolition of the death penalty in the services. I do so because the observations he made seem particularly apposite. This is a difficult issue. It is complicated by the fervent hope of all of us that neither the Armed Forces nor any individual should find themselves in the extreme and awful circumstances about which we are necessarily speculating.

Perhaps I may make one point in response to something the noble Lord, Lord Mayhew, said. He said that the death penalty had not been used for 50 years and that was a good enough reason in itself to consider getting rid of it. I do not think it is a persuasive argument that just because the death penalty has not been carried out for a service offence for a long time it should be abolished. That is not persuasive any more

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than an argument would hold water in relation to the penalty for treason. The Government believe that it is right to maintain the possibility of the death penalty as the ultimate sanction for the service offences to which it applies.

I believe we must take due account of the judgment of those who would have the responsibility for maintaining order should the extraordinary problems of discipline to which the noble Lord, Lord Mayhew, referred five years ago ever arise. As I have already mentioned, the services firmly believe that the death penalty should be retained. On that basis, I would urge the Committee to reject the amendment.